FEDERALIST No. 42



The Powers Conferred by the Constitution Further Considered

From the New York Packet.

Tuesday, January 22, 1788. 



MADISON



To the People of the State of New York:



THE SECOND class of powers, lodged in the general government, consists

of those which regulate the intercourse with foreign nations, to wit: to

make treaties; to send and receive ambassadors, other public ministers,

and consuls; to define and punish piracies and felonies committed on the

high seas, and offenses against the law of nations; to regulate foreign

commerce, including a power to prohibit, after the year 1808, the

importation of slaves, and to lay an intermediate duty of ten dollars

per head, as a discouragement to such importations.



This class of powers forms an obvious and essential branch of the

federal administration. If we are to be one nation in any respect, it

clearly ought to be in respect to other nations.



The powers to make treaties and to send and receive ambassadors, speak

their own propriety. Both of them are comprised in the articles of

Confederation, with this difference only, that the former is

disembarrassed, by the plan of the convention, of an exception, under

which treaties might be substantially frustrated by regulations of the

States; and that a power of appointing and receiving "other public

ministers and consuls," is expressly and very properly added to the

former provision concerning ambassadors. The term ambassador, if taken

strictly, as seems to be required by the second of the articles of

Confederation, comprehends the highest grade only of public ministers,

and excludes the grades which the United States will be most likely to

prefer, where foreign embassies may be necessary. And under no latitude

of construction will the term comprehend consuls. Yet it has been found

expedient, and has been the practice of Congress, to employ the inferior

grades of public ministers, and to send and receive consuls.



It is true, that where treaties of commerce stipulate for the mutual

appointment of consuls, whose functions are connected with commerce, the

admission of foreign consuls may fall within the power of making

commercial treaties; and that where no such treaties exist, the mission

of American consuls into foreign countries may PERHAPS be covered under

the authority, given by the ninth article of the Confederation, to

appoint all such civil officers as may be necessary for managing the

general affairs of the United States. But the admission of consuls into

the United States, where no previous treaty has stipulated it, seems to

have been nowhere provided for. A supply of the omission is one of the

lesser instances in which the convention have improved on the model

before them. But the most minute provisions become important when they

tend to obviate the necessity or the pretext for gradual and unobserved

usurpations of power. A list of the cases in which Congress have been

betrayed, or forced by the defects of the Confederation, into violations

of their chartered authorities, would not a little surprise those who

have paid no attention to the subject; and would be no inconsiderable

argument in favor of the new Constitution, which seems to have provided

no less studiously for the lesser, than the more obvious and striking

defects of the old.



The power to define and punish piracies and felonies committed on the

high seas, and offenses against the law of nations, belongs with equal

propriety to the general government, and is a still greater improvement

on the articles of Confederation. These articles contain no provision

for the case of offenses against the law of nations; and consequently

leave it in the power of any indiscreet member to embroil the

Confederacy with foreign nations. The provision of the federal articles

on the subject of piracies and felonies extends no further than to the

establishment of courts for the trial of these offenses. The definition

of piracies might, perhaps, without inconveniency, be left to the law of

nations; though a legislative definition of them is found in most

municipal codes. A definition of felonies on the high seas is evidently

requisite. Felony is a term of loose signification, even in the common

law of England; and of various import in the statute law of that

kingdom. But neither the common nor the statute law of that, or of any

other nation, ought to be a standard for the proceedings of this, unless

previously made its own by legislative adoption. The meaning of the

term, as defined in the codes of the several States, would be as

impracticable as the former would be a dishonorable and illegitimate

guide. It is not precisely the same in any two of the States; and varies

in each with every revision of its criminal laws. For the sake of

certainty and uniformity, therefore, the power of defining felonies in

this case was in every respect necessary and proper.



The regulation of foreign commerce, having fallen within several views

which have been taken of this subject, has been too fully discussed to

need additional proofs here of its being properly submitted to the

federal administration.



It were doubtless to be wished, that the power of prohibiting the

importation of slaves had not been postponed until the year 1808, or

rather that it had been suffered to have immediate operation. But it is

not difficult to account, either for this restriction on the general

government, or for the manner in which the whole clause is expressed. It

ought to be considered as a great point gained in favor of humanity,

that a period of twenty years may terminate forever, within these

States, a traffic which has so long and so loudly upbraided the

barbarism of modern policy; that within that period, it will receive a

considerable discouragement from the federal government, and may be

totally abolished, by a concurrence of the few States which continue the

unnatural traffic, in the prohibitory example which has been given by so

great a majority of the Union. Happy would it be for the unfortunate

Africans, if an equal prospect lay before them of being redeemed from

the oppressions of their European brethren!



Attempts have been made to pervert this clause into an objection against

the Constitution, by representing it on one side as a criminal

toleration of an illicit practice, and on another as calculated to

prevent voluntary and beneficial emigrations from Europe to America. I

mention these misconstructions, not with a view to give them an answer,

for they deserve none, but as specimens of the manner and spirit in

which some have thought fit to conduct their opposition to the proposed

government.



The powers included in the THIRD class are those which provide for the

harmony and proper intercourse among the States.



Under this head might be included the particular restraints imposed on

the authority of the States, and certain powers of the judicial

department; but the former are reserved for a distinct class, and the

latter will be particularly examined when we arrive at the structure and

organization of the government. I shall confine myself to a cursory

review of the remaining powers comprehended under this third

description, to wit: to regulate commerce among the several States and

the Indian tribes; to coin money, regulate the value thereof, and of

foreign coin; to provide for the punishment of counterfeiting the

current coin and secureties of the United States; to fix the standard of

weights and measures; to establish a uniform rule of naturalization, and

uniform laws of bankruptcy, to prescribe the manner in which the public

acts, records, and judicial proceedings of each State shall be proved,

and the effect they shall have in other States; and to establish post

offices and post roads.



The defect of power in the existing Confederacy to regulate the commerce

between its several members, is in the number of those which have been

clearly pointed out by experience. To the proofs and remarks which

former papers have brought into view on this subject, it may be added

that without this supplemental provision, the great and essential power

of regulating foreign commerce would have been incomplete and

ineffectual. A very material object of this power was the relief of the

States which import and export through other States, from the improper

contributions levied on them by the latter. Were these at liberty to

regulate the trade between State and State, it must be foreseen that

ways would be found out to load the articles of import and export,

during the passage through their jurisdiction, with duties which would

fall on the makers of the latter and the consumers of the former. We may

be assured by past experience, that such a practice would be introduced

by future contrivances; and both by that and a common knowledge of human

affairs, that it would nourish unceasing animosities, and not improbably

terminate in serious interruptions of the public tranquillity. To those

who do not view the question through the medium of passion or of

interest, the desire of the commercial States to collect, in any form,

an indirect revenue from their uncommercial neighbors, must appear not

less impolitic than it is unfair; since it would stimulate the injured

party, by resentment as well as interest, to resort to less convenient

channels for their foreign trade. But the mild voice of reason, pleading

the cause of an enlarged and permanent interest, is but too often

drowned, before public bodies as well as individuals, by the clamors of

an impatient avidity for immediate and immoderate gain.



The necessity of a superintending authority over the reciprocal trade of

confederated States, has been illustrated by other examples as well as

our own. In Switzerland, where the Union is so very slight, each canton

is obliged to allow to merchandises a passage through its jurisdiction

into other cantons, without an augmentation of the tolls. In Germany it

is a law of the empire, that the princes and states shall not lay tolls

or customs on bridges, rivers, or passages, without the consent of the

emperor and the diet; though it appears from a quotation in an

antecedent paper, that the practice in this, as in many other instances

in that confederacy, has not followed the law, and has produced there

the mischiefs which have been foreseen here. Among the restraints

imposed by the Union of the Netherlands on its members, one is, that

they shall not establish imposts disadvantageous to their neighbors,

without the general permission.



The regulation of commerce with the Indian tribes is very properly

unfettered from two limitations in the articles of Confederation, which

render the provision obscure and contradictory. The power is there

restrained to Indians, not members of any of the States, and is not to

violate or infringe the legislative right of any State within its own

limits. What description of Indians are to be deemed members of a State,

is not yet settled, and has been a question of frequent perplexity and

contention in the federal councils. And how the trade with Indians,

though not members of a State, yet residing within its legislative

jurisdiction, can be regulated by an external authority, without so far

intruding on the internal rights of legislation, is absolutely

incomprehensible. This is not the only case in which the articles of

Confederation have inconsiderately endeavored to accomplish

impossibilities; to reconcile a partial sovereignty in the Union, with

complete sovereignty in the States; to subvert a mathematical axiom, by

taking away a part, and letting the whole remain.



All that need be remarked on the power to coin money, regulate the value

thereof, and of foreign coin, is, that by providing for this last case,

the Constitution has supplied a material omission in the articles of

Confederation. The authority of the existing Congress is restrained to

the regulation of coin STRUCK by their own authority, or that of the

respective States. It must be seen at once that the proposed uniformity

in the VALUE of the current coin might be destroyed by subjecting that

of foreign coin to the different regulations of the different States.



The punishment of counterfeiting the public securities, as well as the

current coin, is submitted of course to that authority which is to

secure the value of both.



The regulation of weights and measures is transferred from the articles

of Confederation, and is founded on like considerations with the

preceding power of regulating coin.



The dissimilarity in the rules of naturalization has long been remarked

as a fault in our system, and as laying a foundation for intricate and

delicate questions. In the fourth article of the Confederation, it is

declared "that the FREE INHABITANTS of each of these States, paupers,

vagabonds, and fugitives from justice, excepted, shall be entitled to

all privileges and immunities of FREE CITIZENS in the several States;

and THE PEOPLE of each State shall, in every other, enjoy all the

privileges of trade and commerce," etc. There is a confusion of language

here, which is remarkable. Why the terms FREE INHABITANTS are used in

one part of the article, FREE CITIZENS in another, and PEOPLE in

another; or what was meant by superadding to "all privileges and

immunities of free citizens," "all the privileges of trade and

commerce," cannot easily be determined. It seems to be a construction

scarcely avoidable, however, that those who come under the denomination

of FREE INHABITANTS of a State, although not citizens of such State, are

entitled, in every other State, to all the privileges of FREE CITIZENS

of the latter; that is, to greater privileges than they may be entitled

to in their own State: so that it may be in the power of a particular

State, or rather every State is laid under a necessity, not only to

confer the rights of citizenship in other States upon any whom it may

admit to such rights within itself, but upon any whom it may allow to

become inhabitants within its jurisdiction. But were an exposition of

the term "inhabitants" to be admitted which would confine the stipulated

privileges to citizens alone, the difficulty is diminished only, not

removed. The very improper power would still be retained by each State,

of naturalizing aliens in every other State. In one State, residence for

a short term confirms all the rights of citizenship: in another,

qualifications of greater importance are required. An alien, therefore,

legally incapacitated for certain rights in the latter, may, by previous

residence only in the former, elude his incapacity; and thus the law of

one State be preposterously rendered paramount to the law of another,

within the jurisdiction of the other. We owe it to mere casualty, that

very serious embarrassments on this subject have been hitherto escaped.

By the laws of several States, certain descriptions of aliens, who had

rendered themselves obnoxious, were laid under interdicts inconsistent

not only with the rights of citizenship but with the privilege of

residence. What would have been the consequence, if such persons, by

residence or otherwise, had acquired the character of citizens under the

laws of another State, and then asserted their rights as such, both to

residence and citizenship, within the State proscribing them? Whatever

the legal consequences might have been, other consequences would

probably have resulted, of too serious a nature not to be provided

against. The new Constitution has accordingly, with great propriety,

made provision against them, and all others proceeding from the defect

of the Confederation on this head, by authorizing the general government

to establish a uniform rule of naturalization throughout the United

States.



The power of establishing uniform laws of bankruptcy is so intimately

connected with the regulation of commerce, and will prevent so many

frauds where the parties or their property may lie or be removed into

different States, that the expediency of it seems not likely to be drawn

into question.



The power of prescribing by general laws, the manner in which the public

acts, records and judicial proceedings of each State shall be proved,

and the effect they shall have in other States, is an evident and

valuable improvement on the clause relating to this subject in the

articles of Confederation. The meaning of the latter is extremely

indeterminate, and can be of little importance under any interpretation

which it will bear. The power here established may be rendered a very

convenient instrument of justice, and be particularly beneficial on the

borders of contiguous States, where the effects liable to justice may be

suddenly and secretly translated, in any stage of the process, within a

foreign jurisdiction.



The power of establishing post roads must, in every view, be a harmless

power, and may, perhaps, by judicious management, become productive of

great public conveniency. Nothing which tends to facilitate the

intercourse between the States can be deemed unworthy of the public

care.



PUBLIUS